Order 1

Order Details: Order below exhibit
Pdf Text: O. B. Exh.12 Suit No.572/2018
MHCC010025232018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
ORDER BELOW EXHIBIT 12
IN
SHORT CAUSE NO. NO. 572 OF 2018
(CNR NO. MHCC010025232018)
Mrs. Sadaf Rajab Shaikh … Plaintiff
Versus
Ms. Khushnuma Shamshad Ali
Khan and Ors. … Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 27.02.2025
Appearances:-
Adv. Mr. A. H. Khatri for Plaintiff.
Adv. Mr. Sachin Bandkar for defendants.
ORDER
(Dictated and pronounced in open Court)
This is an application filed by plaintiff under Order 11
Rules 12 and 16 of the Code of Civil Procedure.
2. Heard her Adv. Mr. A. H. Khatri. He submitted that, the
Suit is for declaration of plaintiff’s 1/5th share in all the suit
properties as mentioned in (Exh. A) along with the plaint. The suit
properties belonged to the parents of plaintiff and defendants No.1
to 3 who are real sisters and brother. During the course of
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O. B. Exh.12 2 Suit No.572/2018
arguments, plaintiff sought time to produce documents relating to
the suit properties. But she could not get those, as after marriage
she had left the suit premises. The defendants are in the custody of
all the documents in respect of the suit properties. They are not
allowing the plaintiff to enter the suit premises. Therefore, she is
unable to produce those documents. In these circumstances, he
prayed that the defendants may be called upon to produce on
record the documents relating to suit properties and if they remain
absent then the Summons may be issued to them to that effect.
3. Advocate of the defendants No.1 to 3 Mr. Sachin
Bandkar by filing affidavit in reply at (Exh.13) strongly resisted the
application. He replied that the defendants No.1 to 3 are residing
in the suit property No.1 as mentioned in the Schedule.
Application filed by plaintiff is illegal, basically on the ground that
it came to be filed when evidence of both the sides is concluded,
final arguments are heard and matter was kept for filing citations
only by both the parties. When the defendants have opened up
their defence, such application came to be filed by the plaintiff
after a long span and just to fill up the lacuna in her case.
4. He further replied that, the provisions of Order 11
Rules 12 and 16 of the Code of Civil Procedure are applicable to
the person who is owner of the suit properties or landlord. But the
defendants No.1 to 3 are not the owners or the landlord of the suit
properties. Those were also not recorded in the names of their
parents and therefore, they are also not liable to produce such
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O. B. Exh.12 3 Suit No.572/2018
documents on record. It was the duty of the plaintiff herself before
filing of the suit, to produce all the relevant documents on which
her claim is based. But she has not done so. She has not made
landlords of the suit properties to be the parties to the suit. The
suit premises are tenanted premises and the rent receipts are even
not in the name of their father or mother. Therefore, he prayed for
rejection of application.
5. After going through averments in the application and
affidavit in reply and upon hearing arguments of both the sides,
there appears substance in the arguments of Adv. Mr. Sachin
Bandkar for defendants. Because, it is the settled proposition of
law that when the suit is in respect of immovable properties, the
plaintiff has to produce on record the revenue documents of those
properties, may be those are the tenanted premises. But at the
time of the filing of the suit in the year 2018, it is seen that she has
not placed on record a single document to that effect. Moreover, in
the suit she has not at all disclosed nature of the right of their
parents over the suit premises. It is just a general statement made
by her that the suit premises belonged to their parents.
6. On the contrary, the defendants No.1 to 3 have come
up with the defence that the suit premises are the tenanted
premises. Therefore, they are not in possession of any of the
documents relating to suit premises.
7. Along with plaint and at (Exh.D) on page No.24,
plaintiff appears to have issued notice to the defendants asking
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O. B. Exh.12 4 Suit No.572/2018
them to give her 1/5th share in the suit premises and movable suit
properties. The copy of that notice is addressed to Chief Officer,
MHADA with reference to suit property No.1, which is described in
the Schedule as (Exh.A) appended to the plaint. It goes to show
that the suit property at Sr. No.(i) belongs to MHADA. But it is not
made the party to the suit. Obviously the documents pertaining to
the suit property at Sr. No.(i) in the Schedule (Exh.A) are in the
custody of MHADA. Plaintiff can very well approach MHADA and
get the relevant documents. But she cannot compel the defendants
to produce those documents as according to them those are not in
their custody.
8. So far as suit premises No.(ii) in the Schedule at
(Exh.A) are concerned, in this notice, Ismail Raut is shown as a
landlord. But he is also not made party to the suit. Plaintiff can
very well get the documents regarding that suit premises Niamat
Manzil, Shop No.7/1, Princess Building, near J. J. Hospital Signal,
E. R. Road, Mumbai - 400003 from the landlord Ismail Raut.
9. So far as Suit Property No.(iii) in the Schedule (Exh.A)
is concerned, the copy of that notice is addressed to Mrs. Najma
Shabbir Noymon by showing her to be the landlord of Shop No.1,
adjacent to Alfred Theater, Alfred Cinema Building, Khetwadi, 10th
Lane, Mumbai – 400008. But she is also not made party to the suit.
So the documents relating to Suit Shop No.1 are certainly with
landlord Mrs. Najma Shabbir Noymon and plaintiff can very well
get those documents from her.
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O. B. Exh.12 5 Suit No.572/2018
10. According to plaintiff, the Suit Shop No.1 is given on
license to Mr. Rafiq Khan while Shop No.62 to Krishna Chinese.
When Mrs. Najma Shabbir Noymon is the landlord of the Shop
then she only can disclose the status of Mr. Rafiq Khan and Krishna
Chinese as the licensees of Shops No.1 and 62. The documents
pertaining to that Leave and License are certainly available with
the landlord Mrs. Najma Shabbir Noymon and plaintiff can very
well get those from her. But all these persons are also not made
parties to the suit.
11. It is for the plaintiff to stand on her own legs to prove
her suit claim by bringing on record the relevant and material
documents. But she cannot compel and ask the defendants to
produce such documents on record, when she is the dominus litis
over the plaint. In short, I find no substance in the application. As
such, it deserves to be rejected. Hence, the following order.
ORDER
1. Application at (Exh.12) is rejected.
2. Costs in the cause.
3. Accordingly, application at (Exh.12) stands disposed off.
DATE: - 27.02.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 24.02.2025
Transcribed on : 24.02.2025
Checked on : 25.02.2025
Signed on : 27.02.2025
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O. B. Exh.12 6 Suit No.572/2018
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 27.02.2025, AT 03.25 P. M. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) :
SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order : 27.02.2025
Judgment/order signed by the P. O.
on : 27.02.2025
Judgment/order uploaded on : 27.02.2025
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